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THE SUPREME COURT OF NEW HAMPSHIRE

___________________________

Strafford
No. 2001-049

AGNES HODGDON

v.

FRISBIE MEMORIAL HOSPITAL & a.

December 11, 2001

Law Offices of Brian T. Stern, P.A., of Dover (Brian T. Stern on the brief and orally), for the
plaintiff.

McDonough & O'Shaughnessy, P.A., of Manchester (Robert J. Meagher on the brief and orally),
for the defendants.

Duggan, J. In this medical malpractice case, the defendants, Frisbee Memorial Hospital and
Geoffrey Stein, M.D., appeal from a jury verdict in favor of the plaintiff, Agnes Hodgdon. They
argue that the Trial Court (T. Nadeau, J.) erred in: (1) allowing an ophthalmologist to testify as to
the standard of care for an emergency room physician; (2) ruling that there was sufficient
evidence to prove that Dr. Stein’s alleged negligence was the proximate cause of the plaintiff’s
injury; (3) admitting into evidence a chart showing excerpts of a witness’s testimony written by
plaintiff’s counsel as he examined the witness; (4) admitting into evidence certain documents
from Dr. Stein’s personnel file; and (5) allowing plaintiff’s counsel in closing argument to say
that the jury could find the doctor negligent for his failure to supervise the physician’s assistant
working with him in the emergency room. We affirm.

On Sunday, October 11, 1998, the plaintiff was brought to the emergency room at Frisbie
Memorial Hospital for treatment of a blunt trauma injury to her right eye. Her eye was bruised
and swollen shut. She was examined by Robbie Corriss, a physician’s assistant and then by the
emergency room physician, Geoffrey Stein. Dr. Stein diagnosed the injury as a subconjunctival
hemorrhage with a differential diagnosis of hyphema. He discharged Mrs. Hodgdon instructing
her to apply ice, to take Tylenol and to see her primary care physician on Monday and, if
necessary, an ophthalmologist, on Tuesday. When she saw the ophthalmologist, he diagnosed a
retrobulbar hemorrhage. Eventually, Mrs. Hodgdon lost vision in her right eye. At trial, she
claimed Dr. Stein was negligent when he failed to properly diagnose and treat her condition,
thereby causing her to lose vision, which otherwise she would not have lost. Following a jury
verdict in her favor, the defendants filed this appeal.

I. Expert Testimony

The defendants first argue that the trial court erred in allowing the plaintiff’s expert, Dr. Kuldip
Vaid, an ophthalmologist, to give an expert opinion regarding the appropriate standard of care
for an emergency room physician as required by RSA 507-E:2, I (1997). RSA 507-E:2, I(a)
provides:

In any action for medical injury, the plaintiff shall have the burden
of proving by affirmative evidence which must include expert
testimony of a competent witness or witnesses:

(a) The standard of reasonable

professional practice in the medical
care provider’s profession or
specialty thereof, if any, at the time
the medical care in question was
rendered.

Under Rule of Evidence 702, "a witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto . . . ." In deciding whether to qualify a witness as an
expert, the trial judge must conduct an adequate investigation of the expert’s qualifications.
Mankoski v. Briley, 137 N.H. 308, 313 (1993). Because the trial judge has the opportunity to
hear and observe the witness, the decision whether a witness qualifies as an expert is within the
trial judge’s discretion. See Bissett v. Renna, 142 N.H. 788, 791 (1998). On appeal that decision
will not be reversed unless the trial judge clearly abused her discretion. Id.

The trial court qualified the plaintiff’s expert to testify "as an expert in ophthalmology and an
expert in emergency room care as it pertains to ophthalmology only." The defendants contend
that while Dr. Vaid is an ophthalmologist, he is not qualified to testify about emergency room
care because he had no training as an emergency room physician. They specifically contend that
Dr. Vaid is not qualified to testify whether an emergency room physician should have properly
diagnosed the plaintiff’s condition because his knowledge is more specialized than an emergency
room physician’s. Therefore, the defendants argue that Dr. Vaid does not have the knowledge or
experience that would qualify him under Rule 702 to testify as to the "standard of reasonable
professional practice in [Dr. Stein’s] profession" as required by RSA 507-E:2, I(a). See Bissett,
142 N.H. at 792.
The lack of specialization in a particular medical field does not automatically disqualify a doctor
from testifying as an expert in that field. Mankoski, 137 N.H. at 312-13; cf. Dikeou v. Osborn,
881 P.2d 943, 947 (Utah Ct. App. 1994) (acknowledging preference for limiting experts to
testifying within their own specialty, but holding medical professionals may testify as experts
outside their specialty, upon establishing their knowledge about the relevant standard of care).
Rather, "[a]n individual witness’s qualifications must be determined on a case-by-case basis, not
by application of a per se rule of exclusion or inclusion." Mankoski, 137 N.H. at 313. In this
case, Dr. Vaid testified that he instructs emergency room physicians in the care of emergency
ophthalmic conditions and could provide testimony as to what an emergency room physician is
expected to do when presented with a patient in Mrs. Hodgdon’s condition. Therefore, we cannot
say the trial court abused its discretion in qualifying Dr. Vaid as "an expert in emergency room
care as it pertains to ophthalmology only" and permitting him to testify regarding the appropriate
standard of care.

II. Proximate Cause

The defendants next contend that the trial court erred in denying their motion for a directed
verdict in which they claimed the plaintiff failed to establish the defendants’ alleged negligence
as the proximate cause of her injuries. A motion for a directed verdict "should be granted only
when the sole reasonable inference that may be drawn from the evidence, which must be viewed
in the light most favorable to the nonmoving party, is so overwhelmingly in favor of the moving
party that no contrary verdict could stand." Bronson v. The Hitchcock Clinic, 140 N.H. 798, 800
(1996).

A plaintiff must prove "by affirmative evidence which must include expert testimony . . . [t]hat
as a proximate result [of the defendants’ negligence], the [plaintiff] suffered injuries which
would not otherwise have occurred." RSA 507-E:2, I(c). This statutory standard reflects the
plaintiff’s burden at common law to produce sufficient evidence that the defendants’ negligence
proximately caused her injury. See Bronson, 140 N.H. at 801. "Negligent conduct is a proximate
or legal cause of harm, if the actor’s conduct is a substantial factor in bringing about the harm."
Pillsbury-Flood v. Portsmouth Hospital, 128 N.H. 299, 304 (1986) (quotations and brackets
omitted).

The plaintiff’s only expert, Dr. Vaid, testified that Mrs. Hodgdon’s lost vision was the result of
optic atrophy, which indicated a loss in functioning of her optic nerve. The emergency room
records indicate that an examination of Mrs. Hodgdon’s eye revealed a "large subconjunctival
hemorrhage, which means there was blood in the white part of the eye, and it extended medially
and laterally, so it was found on both sides of the pupil." Dr. Vaid testified that with most
subconjunctival hemorrhages "you can see the limit of the hemorrhage." In this case, however,
the emergency room records indicate the edge of the hemorrhage was not visible. An
examination by an ophthalmologist, two days later, revealed "the hemorrhage went all the way
around [the pupil]" and "a lot of the nerve [was] already gone." While she was at the emergency
room, the pupil in the affected eye "was rather reactive to light, and equal to the opposite pupil."
Therefore, Dr. Vaid concluded, "[c]hances are, her nerve was functioning and there was vision, .
. . pretty decent vision" at the time of the emergency room visit. He further testified, "[I]t’s hard
to [quantify] exactly how much, but by all means at least 50 percent of her nerve was . . .
working and probably more." When Dr. Vaid examined her three weeks later, however, her optic
nerve had suffered significant damage and no longer functioned properly. Finally, Dr. Vaid
testified that had Dr. Stein properly diagnosed Mrs. Hodgdon’s condition as a retrobulbar
hemorrhage and immediately sought treatment to reduce the pressure caused by the hemorrhage,
"she probably would have retained whatever vision" she had when she arrived at the emergency
room.

Viewing this evidence in the light most favorable to the plaintiff, we cannot say that the sole
reasonable inference that may be drawn from the evidence failed to establish that the defendants’
negligence was the proximate cause of the damage to her optic nerve that resulted in her sight
loss. Because the evidence did not so overwhelmingly favor the defendants such that no verdict
for the plaintiff could stand, the trial court did not err in denying the defendants’ motion for a
directed verdict.

III. Admissibility of Testimonial Evidence as an Exhibit

The third issue on appeal is whether the trial court erred by admitting into evidence as an exhibit
a large piece of paper on which plaintiff’s counsel wrote excerpts of the physician assistant’s
testimony as plaintiff’s counsel cross-examined her. Plaintiff’s counsel titled the paper "What
Corriss told Stein." Underneath the heading he wrote a list of the information that the physician’s
assistant provided to the doctor before he examined the plaintiff. At the close of cross-
examination, the plaintiff moved to admit the list as an exhibit. The defendants made a timely
objection, which the court overruled. As an exhibit, the list went to the jury during its
deliberations.

The trial judge has wide discretion in deciding which items admitted into evidence are to be
brought into the jury room during deliberations. See State v. Dugas, 146 N.H. ___, ___ (decided
October 9, 2001) (holding no error in allowing jury to listen to audiotape and view videotape
exhibits admitted into evidence because they are nontestimonial); Brown v. Wiggin, 59 N.H. 327
(1879) (holding no error in allowing jury to bring into jury room diagram referred to in testimony
and used in examining witnesses). In this case, the challenged evidence is in effect a partial
transcript of one witness’s testimony. When the court allows the jury to have excerpts of a
witness’s testimony written by opposing counsel, there is a risk that the jury will unduly
emphasize the written account of the testimony over the oral testimony. As one court explained,
"[T]he triers of fact may place more emphasis on written rather than spoken words since the
written words are readily before them physically while the spoken words uttered at trial can only
be conjured up by memory." Wright v. Premier Elkhorn Coal Co., 16 S.W.3d 570, 572 (Ky. Ct.
App. 1999). For that reason, courts have taken a dim view of allowing a jury to have testimonial
evidence during deliberations that repeats or emphasizes portions of the witness’s trial testimony.
See, e.g., Norfolk and Western Ry. Co. v. Puryear, 463 S.E.2d 442, 444 (Va. 1995) (holding
error to allow jury to have summary of parts of witnesses’ testimony favorable to plaintiff). Here,
the excerpts of the witness’s testimony were written not by the witness but by counsel who, as
plaintiff’s advocate, understandably wanted to emphasize the parts of this witness’s testimony
that were favorable to his client. While it is permissible for counsel to write a summary of the
witness’s testimony during the trial, it is error to give the jury the summary to look at during its
deliberations.

We must now determine whether the error requires reversal of the jury’s verdict. Where the error
is substantial, such that it could affect the verdict, the burden is on the plaintiff to show that the
error did not affect the outcome. Francoeur v. Piper, 146 N.H. ___, ___, 776 A.2d 1270, 1276
(2001); see Cyr v. J.I. Case Co., 139 N.H. 193, 196-97 (1994). The summary in question is a list
of Corriss’s account of the information that she gave to Dr. Stein regarding the plaintiff’s
condition. Providing the jury with a summary of a witness’s testimony could affect the jury’s
verdict, and therefore is a substantial error. While we agree with the defendants that the list is an
incomplete transcript of her testimony, it is not misleading. The record supports the plaintiff’s
assertion that the list accurately reflects Corriss’s testimony. Moreover, the jury in this case was
allowed to take notes during trial and take these notes into the deliberation room. See Super. Ct.
R. 64-A; cf. Allison v. Stalter, 621 N.E.2d 977, 980 (Ill. App. Ct. 1993) (considering fact that
jury was allowed to take notes when determining whether error to submit memorandum created
by counsel in closing to jury). The court instructed the jury that while "the purpose of the notes
[is] to refresh [their] memory on what was said, . . . [o]ne of [their] main concerns is the
credibility of the witnesses, . . . [and therefore while deliberating they] should rely not on [their]
notes, but on what [they’ve] heard and seen and observed, and [their] common sense." Because
the jurors were allowed to take notes and because the trial court cautioned them not to rely upon
written accounts, in this case it is unlikely that the jurors placed greater emphasis on the written
summary than the oral testimony at trial. Therefore, although it was error to admit the challenged
exhibit, the error was harmless.

IV. Admissibility of Statements from Personnel File

The defendants next argue that the trial court erred in allowing plaintiff’s counsel to read from a
letter in Dr. Stein’s personnel file during his cross-examination of Dr. Stein. One of the disputed
factual issues at trial was whether Dr. Stein consulted with Dr. Goldblatt, an ophthalmologist,
before discharging the plaintiff. Dr. Stein testified that he called Dr. Goldblatt who advised him
to discharge the plaintiff. The plaintiff, however, asserted that when Dr. Stein called Dr.
Goldblatt, Dr. Goldblatt told him that he was not the physician on-call and that Dr. Stein should
contact the physician who was on-call.

In an attempt to show why Dr. Stein might be reluctant to contact the on-call specialist, the
plaintiff read the following excerpt from a letter to Dr. Stein from his supervisor contained in Dr.
Stein’s personnel file:

Over the past three years, there has been a pattern of reluctance on
your part to work anything other than your standard shift, six shifts
per month. Your reluctance to work two days in a row, or, God
 forbid, two nights in a row, impacts upon the scheduling process as
well as the schedule for your peers.

I feel that I am stuck in the middle. I am charged with ensuring that

there is adequate coverage of the emergency department during all
hours, and from time to time, this requires assistance on an
unscheduled basis.

Before the plaintiff’s counsel read from the letter, the defendants objected and argued that this
evidence was irrelevant. The court overruled the objection, and Dr. Stein responded by
explaining the range of demands on his work schedule, the friction between himself and the
former director of the emergency room, and the shortage of physicians to staff the emergency
room at that time. Plaintiff’s counsel thereafter questioned him about another sentence in the
letter that suggested Dr. Stein’s work schedule had been changed at his request so that he could
watch the Super Bowl. The defendants again objected, and the trial judge sustained this
objection.

Evidence is relevant if it has "any tendency" to prove a fact that is "of consequence." N.H. R. Ev.
401. The evidence from Dr. Stein’s personnel file was irrelevant. The incidents described
apparently occurred a year earlier and simply had no bearing on the contents of the conversation
between Dr. Stein and Dr. Goldblatt. Whether Dr. Stein was or was not reluctant to work extra
shifts was unrelated to what was said on the phone a year later.

The erroneous admission of this evidence does not, however, require reversal. See Francoeur,
146 N.H. at ___, 776 A.2d at 1276. The evidence was wholly unrelated to the core issues in the
case. In addition, Dr. Stein’s lengthy answer explaining the contents of the letter blunted the
irrelevant information that plaintiff’s counsel injected into the case. Finally, the trial judge
quickly ended the plaintiff’s foray into this area, and no mention was made of this evidence in
closing argument. Although admitting this evidence was a substantial error, the record supports
the plaintiff’s assertion that the error was harmless.

V. Plaintiff’s Closing Argument

Finally, the defendants assert that the trial court allowed the plaintiff to argue improperly in
closing that the physician’s assistant, who had been dismissed from the case, was at fault,
thereby impermissibly implying that the remaining defendants should be responsible for her
alleged fault. At the close of the plaintiff’s case, the court dismissed the case against the
physician’s assistant after finding that the plaintiff’s only expert was not qualified to offer
opinion evidence as to the appropriate standard of care for a physician’s assistant. The
defendants objected when the plaintiff’s counsel in closing argued:

And it’s some mystical experience that the doctors and hospital
[are] in control of. And do they control this situation? Did they do
what had to be done, both Robbie Corriss and Dr. Stein. Dr. Stein
 has to supervise and direct Robbie Corriss, so let’s look at what
took place, and was that an adequate examination.

The defendants contend that the argument was improper because Corriss had been dismissed as a
defendant and the plaintiff did not specifically allege Dr. Stein was negligent on a separate
theory of respondeat superior. The essence of the plaintiff’s argument, however, was that Dr.
Stein himself was responsible because he did not make sure that Corriss completed all the
examinations necessary for him to make a proper diagnosis. Further, the trial court reminded the
jury that "the case against Miss Corriss ha[d] been dismissed" and explained that the hospital
could be liable only for Dr. Stein’s alleged negligence, but not based on any alleged conduct by
Corriss. Therefore, any implication that the defendants may be liable based on Corriss’
negligence was cured by the court’s instruction. Under these circumstances, any error or
prejudice was harmless and, therefore, we will not disturb the jury’s verdict. See Blais v. Town
of Goffstown, 119 N.H. 613, 619-20 (1979).

Affirmed.

BROCK, C.J., and BRODERICK and DALIANIS, JJ., concurred.